DECREE u/s 2(2) of the CPC

Decree according to sub-section (2) of Section 2 CPC means the formal

expression of an adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or any of the
matters in controversy in the suit and may be either
preliminary or final, or
partly preliminary or partly final
i) It shall be deemed to include the rejection of a plaint and
ii) the determination of any question within Section 47 C. P. C. or* Section 144
CPC. but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.

* Deleted by Amendment Act

DEEMED DECREE: The order passed for rejection of plaint under ORDER VII
RULE 11 is deemed to be a Decree within the meaning of Section 2(2) of the
CPC.

The definition of decree in Section 2 (2) C. P. C. as noticed introduces a

statutory fiction by making a deeming provision in relation to particular
orders which would not otherwise have been decrees. The order rejecting
plaint does not conclusively determine the rights of parties nor is it a formal
expression of adjudication determining the rights of parties with reference
to any matter in controversy in the suit.

Indeed, rejection of plaint on any of the grounds mentioned in Rule 11 of

Order VII does not of its own force preclude the plaintiff from presenting a
fresh plaint in respect of the same cause of action as provided by Order VII
Rule 13 C. P. C. it does not mark the due termination of a suit on merits
but only takes away the basis of the suit as though it was never filed.

Kumarika Subarna Rekha Mani Devi ... vs Ramakrishna Deo And

Ors. on 1 December, 1966 (also refer for deeming provision)

The word suit is not defined anywhere in the code. However, Privy Council have defined it
in Hansraj Gupta V. Official Liquidators of the Dehra Dun-Mussoorie
Electric Tramways Co. Ltd[20] “As per the definitions given in this case,
the word ‘suit’ generally means and apart from some other context must
be taken to mean, a civil proceeding instituted by the presentation of a
Plaint”. Suit is a proceeding which starts with presentation of the
Plaint.
Thus, if a proceeding does not start by presenting a plaint, rather by other means; say by
making an application or otherwise, then it cannot be considered as a suit and hence
adjudication so done by the court will not be termed as a decree.

Adjudication: judicial determination of the court on the issues of

controversy. and includes an ex-parte determination Word formal indicates specific
format of decree as also provided in CPC.

Conclusive determinates outrightly rules out any ambiguity or

possibilities in Decree. Which it cannot be said that in a suit that A
can be an owner of the property.

Necessity of a decree

The Code requires passing of decree in all suits. A decree is thus an

essential part of the ultimate outcome of the suit. Decree is an
indispensible requisite. An appeal lies against a decree and not against a
judgment. Without a decree an appeal cannot be “put in motion”. A
decree is therefore an absolute necessity.

DIFFERENCE BETWEEN DECREE AND ORDER

No Decree Order

1) Section 2(2) of the Code of Civil Section 2(14) of the CPC defines
Procedure defines “Decree” “Order”

2) “Decree” means the formal expression According to Section 2(14) of the said
of an adjudication which, so far as Code, “order” means the formal
regards the Court expressing it, expression of any decision of a Civil
conclusively determines the rights of Court which is not a decree
the parties with regard to all or any of
the matters in controversy in the suit
and may be either preliminary or final.
 3) In can only be passed in a suit An order may originate from a suit by
which commenced by presentation of a presentation of a plaint or may arise
plaint. from a proceeding commenced by a
petition or an application.

4) It may be preliminary or final or partly An order cannot be a preliminary order.

preliminary and partly final.

5) Except in certain suits, where two In a suit or proceeding, a number of

decrees, one preliminary and other final orders may be passed
are passed, in every suit there can be
only one decree there are certain
exceptions

6) Every decree is appealable unless Every order is not appealable. Only

otherwise expressly provided those orders are appealable as specified
in CPC (Order 43 and Section 104).

7) A Second Appeal lies to the High Court while no Second Appeal lies in case of
on certain grounds from the decree passed Appealable Orders
in the First Appeal; Thus there may be
two appeals

 A decree can only originate from a suit initiated by introducing a plaint.

But an order may originate from any suit; for the most part, it emerges from
a procedure initiated on an application.
 A decree is the substantive legal rights of the parties and order is the
procedural legal rights of the parties.
 A decree is an adjudication which conclusively determines the rights of
the parties with regard to any or all matters in controversy. On the other
hand, an order may or may not finally determine the rights of the parties.
 In a suit decree is only one and there can be many orders in a suit.
 A decree can be preliminary, final or partly preliminary and partly final
and order is always final.
 Except in certain suits where two decrees, one preliminary and the
other final, are passed, in every suit, there is only one decree. On the other
hand, many orders can be passed in a single suit.
 A decree is normally appealable except if it is specifically barred by
law. Order can be appealable or non-appealable.
S.Muthu Narayanan vs Paulraj Naicker on 12 September, 2018

"It is a fundamental principle well established that a decree passed by a court

without jurisdiction is a nullity and that its invalidity could be set up wherever and
whenever it is sought to be enforced or relied upon, even at the stage of execution
and even in collateral proceedings. A defect of jurisdiction......strikes at the very
authority of the Court to pass any decree and such a defect cannot be cured even
by consent of parties. "

In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors.,

[1871] l SCR 66, a decree for possession was passed by the Court of Small Causes
which was confirmed in appeal as well as in revision. In execution proceedings, it
was contented that the Small Causes Court had no jurisdiction to pass the decree
and, hence, it was a nullity.

It is also relevant to point out that under Section 96(2) of the Code of Civil
Procedure, an appeal may lie from an original decree passed ex parte.
NULL, VOID AND ILLEGAL DECREE ( Rafique Bibi v. Sayed
Waliuddin)

NULL AND VOID DECREE: A decree can be said to be without jurisdiction,

and hence a nullity, if the court passing the decree has usurped a
jurisdiction which it did not have. It is a fundamental principle well-
established that a decree passed by a Court without jurisdiction is a nullity,
& that its invalidity could be set up whenever and wherever it is sought to
be enforced or relied upon, even at the stage of execution and even in
collateral proceedings.

When the court has no jurisdiction of the cause, there the whole
proceeding is coram non judice, and actions will lie against them without
any regard of the precept or process.

FUNDAMENTAL PRINCIPLE
A mere wrong exercise of jurisdiction does not result in a nullity. The lack
of jurisdiction in the court passing the decree must be patent on its face in
order to enable the executing court to take cognizance of such a nullity
based on want of jurisdiction, else the normal rule that an executing court
cannot go behind the decree must prevail.

A Court executing a decree cannot go behind the decree between the

parties or their representatives; it must take the decree according to its
tenor, and cannot entertain any objection that the decree was incorrect in
law or on facts. Until it is set aside by an appropriate proceeding in appeal
or revision, a decree even if it be erroneous is still binding between the
parties.

Examples of null decree: Dhurandhar Prasad Singh vs Jai Prakash

University And Ors on 24 July, 2001

a) a decree is made by a Court which has no inherent jurisdiction

to make it
b) where it is passed without bringing the legal representatives
on the record of a person who was dead at the date of the
decree; or
c) against a ruling prince without certificate

The expression void has several facets. One type of void acts, transactions, decrees
are those which are wholly without jurisdiction, ab initio void and for avoiding the
same no declaration is necessary, law does not take any notice of the same and it
can be disregarded in collateral proceeding or otherwise.
ILLEGAL DECREE Ittyavira Mathai v. Varkey Varkey and another:
If the suit is barred by time and yet, the court decrees it, the court would be
committing an illegality and therefore the aggrieved party would be entitled
to have the decree set aside by preferring an appeal against it. But it is
well settled that a court having jurisdiction over the subject matter of the
suit and over the parties thereto, though bound to decide right may decide
wrong; and that even though it decided wrong it would not be doing
something which it had no jurisdiction to do. It had the jurisdiction over the
subject matter and it had the jurisdiction over the party and, therefore,
merely because it made an error in deciding a vital issue in the suit, it
cannot be said that it has acted beyond its jurisdiction. As has often been
said, courts have jurisdiction to decide right or to decide wrong and even
though they decide wrong, the decrees rendered by them cannot be
treated as nullities.

In the case of Ittyavira Mathai v. Varkey Varkey and another AIR 1964
S.C.907, the question which fell for consideration before this Court was if a
Court, having jurisdiction over the parties to the suit and subject matter
thereof passes a decree in a suit which was barred by time, such a decree
would come within the realm of nullity and the Court answered the
question in the negative holding that such a decree cannot be treated to be
nullity but at the highest be treated to be an illegal decree.

It is necessary to distinguish between two kinds of invalidity. The one kind is

where the invalidity is so grave that the list is a nullity altogether. In which case
there is no need for an order to quash it. It is automatically null and void without
more ado. The other kind is when the invalidity does not make the list void
altogether, but only voidable. In that case it stands unless and until it is set aside.

A distinction exists between a decree passed by a Court having no jurisdiction

and consequently being a nullity and not executable and a decree of the Court
which is merely illegal or not passed in accordance with the procedure laid
down by law. A decree suffering from illegality or irregularity of procedure,
cannot be termed inexecutable by the executing Court; the remedy of a person
aggrieved by such a decree is to have it set aside in a duly constituted legal
proceedings or by a superior Court failing which he must obey the command of
the decree. A decree passed by a Court of competent jurisdiction cannot be
denuded of its efficacy by any callateral attack or in incidental proceedings.

The executing Court cannot thus permit objections to be raised about the validity
of the decree sought to be executed except on ground of its being a nullity for want
of jurisdiction of the Court that passed it, and the Court is bound to execute the
decree as it stands.
CHANGE OF LAW: In the case of Haji Sk.Subhan v. Madhorao, AIR 1962
S.C.1230, the question which fell for consideration of this Court was as to
whether an executing Court can refuse to execute a decree on the ground
that the same has become inexecutable on account of the change in law in
Madhya Pradesh by promulgation of M.P.Abolition of Proprietary Rights
(Estates, Mahals, Alienated Lands) Act, 1950 and a decree was passed in
ignorance of the same.

The contention that the Executing Court cannot question the decree and
has to execute it as it stands, is correct, but this principle has no operation
in the facts of the present case. The objection of the appellant is not with
respect to the invalidity of the decree or with respect to the decree being
wrong. His objection is based on the effect of the provisions of the Act
which has deprived the respondent of his proprietary rights, including the
right to recover possession over the land in suit and under whose
provisions the respondent has obtained the right to remain in possession
of it. In these circumstances, we are of opinion that the executing Court
can refuse to execute the decree holding that it has become inexecutable
on account of the change in law and its effect.
DECREE

https://lawofcivilprocedure.wordpress.com/2016/10/31/preliminary-decree/

http://lawtimesjournal.in/preliminary-decree/

Difference between Preliminary Decree and Final Decree (Renu Devi Vs.
Mahendra Singh 2003)
Bimal Kumar and Another Vs. Shankuntala Debi and others.

Preliminary Decree in case of suit of partition

The legislature in its wisdom has thought that certain suits of certain types should
be decided in stages and though the suit in such cases can be regarded as fully and
completely decided only after a final decree is made.

Moolchand & Others Vs. Dy. Director, Consolidation And Others (SC 1995)

i) Order 20 Rule (18)(2): Decree in suit of partition talks about preliminary

decree.
ii) Order 26 Rule (13)& (14): Issue of Commission after preliminary decree is
passed and procedure of Commissioner.

i) Preliminary Decree cannot be executed.

j) Preliminary Decree is appleable Decree u/s 97 of the Code

.A preliminary decree is passed in those cases in which the Court has to first adjudicate
upon the rights of the parties and then to stay its hands for the time being; until it is in a
position to pass final decree in a suit.

Preliminary Decree in a mortgage suit

Preliminary Decree in a suit for dissolution of partnership

A Preliminary Decree cannot be equated with an interlocutory order within the meaning
of Section 105 CPC (Venkata Reddy VsPethy Reddy)
Preliminary Decree settles the right of the parties and final decree work out those rights.
A preliminary decree is only concerned with disputes germane to the suit up to the date
of the passing of the said decree.
A preliminary decree is not dependent on the final decree.

In the circumstances, when as appeal is preferred against a preliminary decree like

the present one, what is asked to be stayed is not execution of a decree, but only
further proceedings in pursuance of the preliminary decree appealed against i.e.,
stay of further proceedings in the final decree proceedings. It is this distinction that
makes all the difference.

Instances of suit where a preliminary decree can be granted:

1. Suits for possessions and mesne profits[iii] Hasham Abbas v. Usman Abbas
[2007]
2. Administrative suits[iv] The Code of Civil Procedure 1908, O. 20 R. 12
3. Suits for pre-emption[v] The Code of Civil Procedure 1908, O. 20 R. 13
4. Dissolution of partnership[vi] The Code of Civil Procedure 1908, O. 20 R. 14.
5. Accounts between principal and agent[vii] The Code of Civil Procedure 1908,
O. 20 R. 15
6. Partition and Separate possession[viii] The Code of Civil Procedure 1908, O. 20
R. 16
7. Foreclosure of mortgage[ix] The Code of Civil Procedure 1908, O. 20 R. 18
8. Sale of mortgaged property[x] The Code of Civil Procedure 1908, O. 34 R. 2-3
9. Redemption of a mortgage.[xi] The Code of Civil Procedure 1908, O. 34 R. 4-5
Exparte Decree (Order 9)

As per Rule 6, if the defendant fails to appear before the court in spite of a proper

service of the summons, the court may proceed ex-parte and may pass a decree in favor

of the plaintiff. This is called an ex-parte decree. In the case of Hochest Company vs V S

Chemical Company, SC explained that an ex parte decree is such decree in which

defendant did not appear before court and the case is heard in the absence of the

defendant from the very beginning.

Remedies available to the defendant against an ex parte decree:

1. Order 9 Rule 13: the decree to set it aside. If he satisfies the court that the summons

was not duly served or he was prevented by any other sufficient cause from attending

the hearding, the court shall make an order setting aside the decree. For example, bona

fide mistake as to the date or hearing, late arrival of train, etc. are sufficient causes for

absence of the defendant. Such an application for setting aside may be made within 30

days from the date of decree as per Section 123 of Limitation Act.

2. Prefer an appeal against the decree under Section 96(2).

3. Apply for review under Order 47 Rule 1.

4. File a suit on the ground of fraud.

JUDGMENT SECTION 2(9)

Judgment" as defined in Section 2(9) of the Code of Civil Procedure means the
statement given by the Judge of the grounds for a decree or order.

What a judgment should contain is indicated in Order 20, Rule 4 (2)

In Dineshwar Prasad Bakshi vs. Parmeshwar Prasad Sinha, AIR

1989 Patna 139, it was held that the judgment pronounced under Order 8 Rule 10
must satisfy the requirements of "judgment" as defined in Section 2(9) of the
Code.

Judgment Decree

1 Meaning of Judgment - Judgement It is not necessary for a judge to give

means statement given by a Judge statement of ground in a decree.
of the grounds of decree or order.
Section

2 It is not necessary that there It is necessary that there must be

should be a formal expression of formal expression of the decree 
order in the judgement

Judgement should state preciously Decree must determinate the rights of

3 the relief granted. the parties

4 Judgement contemplates stage Decree Follows after judgement

prior to the passing of a decree

There may be a judgment in civil Generally decree is passed in a civil

5 suit as well as in criminal case. suit

Decree is the operating part of the

judgment and it has to be in harmony with
the judgment. Section 33 of the Civil
Procedure Code, 1908 says decree is
followed by the judgment.

Decree has to be in line with the

judgment and it should present the
correct interpretation of the judgment.
 Judgment as contemplated under section 2(9) is a statement
given by a judge on the grounds of a decree or order. However, It
is not necessary for a judge to give a statement in a decree
under section 2(2) though it is necessary in a judgment.
 It is not necessary that there should be a formal expression of
the order in the judgment, though it is desirable to do so. Rule 6
order 20 states that last paragraph of the judgment should state
precisely the relief granted.
 A judgment contemplates a stage prior to the passing of a decree
or an order and after the pronouncement of the judgment, a
decree shall follow.